Citation Nr: 1014506
Decision Date: 04/16/10 Archive Date: 04/29/10
DOCKET NO. 07-28 083 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder, to include posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant and his spouse.
ATTORNEY FOR THE BOARD
M. Riley, Associate Counsel
INTRODUCTION
The Veteran served on active duty with the Marine Corps from
January 1969 to January 1972 and with the Navy from January
1991 with April 1991 with additional service in the Marine
Corps Reserves. This case comes before the Board of
Veterans' Appeals (Board) on appeal from a July 2005 rating
decision issued by the Department of Veterans Affairs (VA)
Regional Office (RO) in Atlanta, Georgia.
In February 2010, the Veteran testified at a hearing before
the undersigned Veterans Law Judge at the RO. A transcript
of the hearing is of record.
The issue on appeal was previously characterized by the RO as
entitlement to service connection for PTSD. The Court of
Appeals for Veterans Claims (Court) has recently held in
February 2009 that a claim for service connection for a
psychiatric disability encompasses all psychiatric
symptomatology, regardless of how that symptomatology is
diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In
light of Clemons, the Board has recharacterized the issue in
the instant appeal as entitlement to service connection for
an acquired psychiatric disability to include PTSD.
In previous final rating decisions in September 1995 and in
February 1996, the RO denied service connection for panic
attacks and anxiety but did not consider diagnoses of PTSD or
schizophrenia. The Board will, therefore, address the
current appeal on a de novo basis. See Boggs v. Peake, 520
F.3d 1330 (Fed. Cir. 2008) (claim for one diagnosed disease
or injury cannot be prejudiced by a prior claim for a
differently diagnosed disease or injury); Ephraim v. Brown,
82 F.3d 399 (Fed. Cir. 1996) (claim based on a new diagnosis
is a new claim).
FINDINGS OF FACT
1. The Veteran does not have PTSD.
2. An acquired psychiatric disorder other than PTSD was not
present during service and is not etiologically related to
active duty service.
CONCLUSION OF LAW
An acquired psychiatric disorder, to include PTSD, was
neither incurred in nor aggravated by active service. 38
U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f)
(2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran contends that he incurred PTSD as a result of
traumatic experiences during his two periods of active duty
service. In February 2010 he testified that he worked as a
mortician's assistant while on active duty service in June
1971 and had to embalm the bodies of soldiers killed in
Vietnam. He also testified that he worked as an operating
room technician in the United States during his second period
of service and assisted in plastic surgery procedures on
soldiers who had been injured in Operation Desert Storm. A
November 2004 stressor statement submitted along with the
Veteran's claim for service connection also states he was
exposed to sniper fire while serving on active duty in Cuba.
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service
connection requires competent evidence showing: (1) the
existence of a present disability; (2) in-service incurrence
or aggravation of a disease or injury; and (3) a causal
relationship between the present disability and the disease
or injury incurred or aggravated during service. Shedden v.
Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also
Caluza v. Brown, 7 Vet. App. 498 (1995).
For the showing of a chronic disease in service, there is
required a combination of manifestations sufficient to
identify the disease entity and sufficient observation to
establish chronicity at the time. If chronicity in service
is not established, a showing of continuity of symptoms after
discharge is required to support the claim. 38 C.F.R. §
3.303(b). Service connection may also be granted for any
disease diagnosed after discharge when all of the evidence
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d).
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with 38 C.F.R. §
4.125(a) (DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS, 32 (4th ed.) (1994) (DSM IV)); a link, established
by medical evidence, between current symptoms and an in-
service stressor; and credible supporting evidence that the
claimed in-service stressor occurred (unless the evidence
shows that the Veteran engaged in combat and the claimed
stressor is related to combat). 38 C.F.R. § 3.304(f) (2009).
The Board finds that the evidence of record does not
establish that the Veteran has PTSD. Service connection
requires the presence of a current disability, meaning a
disability must be shown by competent medical evidence to
exist at the time of the award of service connection.
Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Chelte v.
Brown, 10 Vet. App. 268 (1997). To be present as a current
disability the condition must be shown at the time of the
claim, as opposed to some time in the distant past. Gilpin
v. West, 155 F. 3d 1353 (Fed. Cir. 1998).
Although the record contains some medical findings of PTSD,
these diagnoses were rendered many years before the Veteran's
current claim for service connection was received.
Psychiatric testing performed in conjunction with the
Veteran's hospitalization at the Augusta VA Medical Center
(VAMC) in March 1995 supported a diagnosis of PTSD, and a
private psychologist diagnosed PTSD in an undated examination
report submitted by the Veteran in 1995. As the Veteran's
claim for service connection was received in November 2004,
the diagnoses of PTSD made years before his claim are not
evidence of a current disability.
Additionally, the medical evidence dated during the claims
period establishes that the Veteran does not currently have
PTSD. Treatment records from the VAMC show continuous
treatment for schizophrenia and generalized anxiety disorder,
but there are no findings of PTSD. In fact, in January 2005,
the Veteran's VA psychologist specifically found that the
Veteran did not meet the criteria for a diagnosis of PTSD.
The weight of the evidence is therefore against a finding
that the Veteran meets the criteria for a diagnosis of PTSD,
and service connection for this disability is not warranted.
38 C.F.R. § 3.304(f) (2009).
Turning to the Veteran's other diagnosed psychiatric
conditions, schizophrenia and generalized anxiety disorder,
the evidence does not establish that these disabilities are
etiologically related to active duty service.
Service treatment records are negative for evidence of a
psychiatric disorder. The Veteran was referred for a
neuropsychiatric consultation in February 1969 where he was
described as a "non-proficient performer." No psychiatric
diagnosis was rendered. The Veteran was also consistently
found psychiatrically normal during physical examinations
conducted throughout his periods of active duty and reserve
service dated from October 1968 to September 1991.
The Veteran has also reported a continuity of symptomatology
since service. The history he has provided is to the effect
that he first experienced symptoms of a psychiatric condition
during his first period of active service and sought
treatment soon after his discharge in January 1972. Despite
the Veteran's contentions, the medical evidence of record
does not document any findings related to a psychiatric
condition until December 1994, when the Veteran was diagnosed
with anxiety after undergoing private treatment for atypical
chest pain. Thus, there is no record of a psychiatric
disorder for more than 20 years after the Veteran's first
discharge from active duty and more than three years after
his second discharge in April 1991. The lack of any clinical
evidence both during and for decades after service weighs
against a finding that the Veteran's disability was present
for the many years between service and his current
complaints. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).
In addition, the Board finds that the history reported by the
Veteran is not credible. Upon psychiatric testing in
February 1995, the Veteran's responses were deemed invalid
due to his strong tendency to over-report symptoms.
Similarly, upon VA examination in August 1996, the examiner
found that the evidence suggested malingering and/or an over-
reporting of symptoms by the Veteran. The Veteran has also
provided conflicting accounts regarding the history of his
psychiatric conditions. During his first psychiatric
hospitalization in March 1995, he reported the onset of
symptoms in September or October 1994 soon after the sudden
death of his brother. These reports are corroborated by the
private medical records documenting findings of anxiety in
late 1994. In contrast, in connection with his claim for
benefits the Veteran has stated that he first experienced
psychiatric symptoms during active duty service in the 1970s.
The Board finds that the history provided in connection with
clinical treatment is more credible than that provided for
compensation purposes years later.
The record also contains no competent medical evidence of a
nexus between the Veteran's current psychiatric disorders and
his active duty service. The Board has considered the
testimony of the Veteran connecting his disabilities to
service, but as a lay person, he is not competent to provide
an opinion concerning medical causation. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992). The Board
acknowledges that the Veteran is competent to testify as to
observable symptoms, but as noted above, the Veteran's
reports of a continuity of symptoms since service are not
credible. See Buchanan v. Nicholson, 451 F.3d 1131, 1336
(Fed. Cir. 2006).
In sum, the post-service medical evidence of record shows
that the first evidence of the Veteran's claimed psychiatric
disorders was years after his separation from active duty
service and after his claim for compensation was received.
In addition, there is no competent medical evidence that the
Veteran's diagnosed psychiatric conditions are related to
active duty service. The Board has considered the Veteran's
reported continuity of symptomatology, but concludes that his
statements are not credible and therefore, the weight of the
evidence is against a nexus between the current psychiatric
disorders and active duty service. Accordingly, the Board
must conclude that the preponderance of the evidence is
against the claim, and it is denied. 38 U.S.C.A. § 5107(b)
(West 2002).
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002 & Supp. 2009) defined VA's duty to assist a veteran in
the development of a claim. VA regulations for the
implementation of the VCAA were codified as amended at 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).
VA must inform the claimant of any information and evidence
not of record (1) that is necessary to substantiate the
claim; (2) that VA will seek to provide; (3) and that the
claimant is expected to provide. Pelegrini v. Principi
(Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).
In this case, notice fulfilling the requirements of 38 C.F.R.
§ 3.159(b) was furnished to the Veteran in a December 2004
letter. While he has not received specific information
regarding the disability rating and effective date elements
of his claim in accordance with Dingess/Hartman v. Nicholson,
19 Vet. App. 473 (2006), as the claim is being denied no
additional disability rating or effective date will be
assigned. Therefore, the Veteran is not prejudiced by the
lack of notice on these elements. See Bernard v. Brown, 4
Vet. App. 384, 394 (1993) (where the Board addresses a
question that has not been addressed by the agency of
original jurisdiction, the Board must consider whether the
Veteran has been prejudiced thereby).
VA is also required to make reasonable efforts to help a
claimant obtain evidence necessary to substantiate his claim.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty
to assist" contemplates that VA will help a claimant obtain
records relevant to her claim, whether or not the records are
in Federal custody, and that VA will provide a medical
examination or obtain an opinion when necessary to make a
decision on the claim. 38 C.F.R. § 3.159(c)(4).
VA has obtained records of treatment reported by the Veteran,
including service treatment records, records of VA treatment,
and private medical records. During the February 2010
hearing, the Veteran testified that he worked as a
mortician's assistant in June 1971 while serving on active
duty with the Marine Corps. His work included embalming the
bodies of soldiers returning from Vietnam, and the Veteran
identified these memories as a stressor for his claim of
PTSD. The Veteran's representative stated that confirmation
of the Veteran's duty assignment would most likely be present
in the Veteran's unit's daily reports. As the claim for PTSD
is denied on the basis of the lack of a current diagnosis,
remand for confirmation of the Veteran's claimed stressors is
not required.
The Veteran also testified that he first underwent treatment
at the Augusta VAMC Uptown Division in the early 1970s, after
discharge from his first period of active duty service. The
claims folder currently contains treatment records from the
Augusta VAMC dating from September 1986, but there is no
indication that additional records are available for
procurement. A March 1995 response from the Augusta VAMC to
the RO's records request establishes that no records were
located for the Veteran in either the Uptown or Downtown
divisions. Accordingly, remanding the claim for additional
attempts to retrieve VA treatment would only serve to further
delay the claim.
Under the VCAA, VA is obliged to provide an examination when
the record contains competent evidence that the claimant has
a current disability or signs and symptoms of a current
disability, the record indicates that the disability or signs
and symptoms of disability may be associated with active
service; and the record does not contain sufficient
information to make a decision on the claim. 38 U.S.C.A. §
5103A(d) (West 2002). The evidence of a link between current
disability and service must be competent. Wells v. Principi,
326 F.3d 1381 (Fed. Cir. 2003). The threshold for getting an
examination under the VCAA is low. McLendon v. Nicholson, 20
Vet. App. 79, 83 (2006).
The Board acknowledges that the Veteran has not been afforded
a VA examination or medical opinion in response to his claim
but has determined that no such examination or opinion is
required. The medical evidence of record is sufficient to
decide the claims and there is no reasonable possibility that
such examinations would result in evidence to substantiate
the claim. the Veteran testified in February 2010 that he
has experienced a continuity of psychiatric symptoms dating
from his first period of active duty service. A Veteran's
report of such a history can trigger VA's duty to get an
examination. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.
2006). As discussed above, the Board has determined that the
history provided by the Veteran is not credible.
Furthermore, the record contains no medical evidence of an
association between any of the Veteran's claimed psychiatric
disorders and active duty service. However, Therefore, the
duty to assist does not require that VA provide the Veteran
with an examination or medical opinion in response to his
claim for service connection. Id.
For the reasons set forth above, the Board finds that VA has
complied with the VCAA's notification and assistance
requirements.
ORDER
Entitlement to service connection for an acquired psychiatric
disorder, to include PTSD, is denied.
____________________________________________
Mary Gallagher
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs